Will There Be a Strike at York?

Written by David Doorey, York University

It may be flying under the media radar, but full-time professors at York University will be in a legal strike position and York will be lawfully entitled to lockout professors or unilaterally impose conditions of employment on professors as of March 24.  That is less than two weeks from today.  Let me preface the following observations by noting that I am not at the bargaining table and so I have no first hand knowledge of what has been discussed.  I have only the updates from the parties (see York’s Update page and YUFA’s Updates here).

Where Are We At?

As I explain in Chapter 34 of The Law of Work (The Law of Industrial Conflict), in order to get to the point of a legal strike/lockout, the parties must hop through a bunch of legal hoops.  Firstly, the parties must begin negotiations and then one side or the other (or both) must request the government to appoint a conciliator (like a mediator) who helps the parties reach a deal.

Secondly, once the conciliator informs the Minister of Labour that conciliation has not led to a deal, the MOL has a choice of what to do next. The MOL can decide that more conciliation, this time through a 3 person conciliation board, will be useful and appoint that board.  However, almost always the MOL opts for the second option, which is to announce that no conciliation board will be appointed.  This is known in labour law parlance as a “No Board Report”.  Section 79(2) of the Labour Relations Act then says that  “16 days” after the No Board Report is sent out, the parties are in a legal strike/lockout position.  In the York case, that deadline works out to be March 24.

Thirdly, in order to strike lawfully, the union must conduct a strike vote and a majority of bargaining unit employees who vote must vote too strike (OLRA, s. 79(3).   A successful strike vote was taken by YUFA.  Therefore, all of the conditions for a lawful strike will have been satisfied by March 24.

Does this Mean That There Will be a Strike or Other Escalation?

The fact that the professors COULD strike doesn’t mean they necessarily will.   There has not been a work stoppage by York full-time professors in nearly 30 years.  Almost all collective bargaining ends without a work stoppage (something like 90% or more in Canada).  The most likely outcome at this point, two weeks until March 24, is still that a deal will be reached without any work stoppage.  If the parties are close to a deal on March 24, they can just keep negotiating after that date without any sort of work stoppage.  Therefore, my advice to students is to just ignore talk of a strike and just continue on with your studies.  Odds are none of this will effect you directly.

However, if no deal is reached, then any time after March 24, a variety of things COULD happen.

One possibility is that York locks out professors.  I doubt this will happen.  York will want the term to finish.  Another is that York could unilaterally change the terms of professors’ employment. This was Windsor University’s strategy a few years back.  Once it was a legal lockout period, Windsor informed its professors that it was stopping all contributions to pensions and benefit plans, was suspending its grievance procedure, and was cancelling all reimbursements for expenses, among other regressive changes.

This strategy would not likely work at York and would be a stupid move by the employer.  The reason is that, unlike at Windsor, the York faculty were smart enough to conduct a successful strike vote.  If York tried to impose regressive terms on the York professors, YUFA could just strike.  I explain all of this in this earlier post, “The Folly of Not Voting to Strike in Canadian Collective Bargaining Law”.  So if York wants a strike, all it needs to do is follow Windsor’s lead and try to impose terms on the professors.

A third possibility is that YUFA members go out on strike.  That strike could be a full scale walkout like we saw a few years ago by CUPE members at York.  A strike like that would shut down the university and cancel courses.  Whether students finish the term then would be part of the negotiation process and would depend on the length of the work stoppage.  In past labour disputes, universities and their unions have found ways to get students through the courses.  Alternatively, the strike could be less than a full walkout.  For example, professors could just stop doing any administrative work but conclude the end of the courses, or conduct rotating strikes, cancelling some classes but not all.  My sense is that if it comes to a strike, a full out strike will be the option in order to put the greatest pressure on the employer.

Another possibility is that the parties agree to refer outstanding issues to binding interest arbitration.  This sort of agreement is rare because one side or the other usually doesn’t trust interest arbitration.  As far as I can tell, neither side has so far requested interest arbitration, but that might happen in the coming days.

Finally, if a strike or lockout were to occur, there is always the possibility that the Ontario government will hold an emergency session to pass Back to Work legislation and order binding arbitration.  This is more likely if the term is threatened, but the option of legislation is also complicated somewhat by the timing of the coming election and impending shut down of the legislature.

What are the issues?

As I noted earlier, I’m not at the table so I don’t have a complete grasp of all of the issues.  Watch for a variety of updates from the parties in the days ahead.  Take all of these updates from the parties with a grain of salt since both sides will be spinning the story.  However, if you read the updates critically you can usually sort out what the big issues are.

Certainly if there is a work stoppage a lot of the blame falls directly on the provincial government and its incredibly misguided decision to impose through its controversial #Bill124 a wage freeze of 1% on the public sector (including professors) during one of the worst periods of inflation in memory. Combined with decades long cuts to education budgets, it was entirely predictable that collective bargaining would be strained by government policies that impose a real income loss of about 5% on employees given the high rate of inflation.

Other than compensation, I understand big issues include disagreements on delivery of courses and the extent to which professors have control over the manner in which courses are delivered.  There are equity related issues remaining as well.

The employer also wants to do away with a committee that settles grievances to avoid the extremely high costs of arbitration known as the Dispute Resolution Committee.  I am intimately aware of this committee because I have sat on it for over a decade and I am presently the Chair of the committee.  Personally, I think the DRC does good work.  We have settled dozens of grievances over the years in a collaborative manner and thereby avoiding many divisive and expensive arbitrations.  The employer has proposed a new voluntary alternative model that will allow either party to refuse to participate.  It is reasonable to assume that this change would be expected to increase the money spent by the parties on lawyers and arbitration moving forward.

A Fun One for Labour Law Folks

I understand that there is another small issue that is fascinating from a labour law perspective.  What do you think of this situation, Labour Law aficionados.  There is a bizarre clause in the Collective Agreement (Art. 8.02) that requires the Union to provide the employer with copies of any correspondence that it sends to its members.  Here is the language:

The Association agrees to provide the Employer with the following information: (a) copies of any mailings for the Association to either all its members or all members of the bargaining unit, to be sent to the Employer at the same time as the general mailing.

I’m sorry, What? How this clause got into the collective agreement initially is a mystery, but why would a union ever agree to copy the employer on its internal communications with its members?  Think it about this way: Why isn’t this clause reciprocal?  The answer is that no employer would agree to copy the union on all of its internal deliberations and communications about labour relations matters.  We even have a law that prohibits any employee of a company who has regular access to the employer’s labour relations information from unionizing because the law recognizes that the parties must be able to keep this information from the other side (see Labour Relations Act, s. 1(3)(b))

Section 70 of the Labour Relations Act  prohibits an employer from interfering with the administration of a union or “the representation of employees by a union”.  YUFA has proposed amending the language in Article 8.02(a) to create an exception when the communication has to do with internal union strategies in bargaining, grievances, or other legal disputes and York has apparently rejected this proposal.  Apparently the employer has refused this change! In my humble opinion, this is NUTS.  The employer absolutely has no right to insist upon receiving union communications to union members at all, let alone communications about legal and bargaining strategies.  In fact, all of Article 8.02(a) should be gone.  Jeez.

While an employer can propose language entitling it to receive information communicated by a union to its members, it certainly cannot INSIST upon it if the union says refuses.  I’d argue that, insofar as York insists that the language requiring YUFA to copy it on any internal emails to members relating to legal and bargaining issues remain, it is violating the Labour Relations Act by interfering with the administration of a union and representation of union members and is engaging in bad faith bargaining.  An employer cannot insist in collective bargaining on having access to internal union communications with its members.  Period.  I get that any union member could just forward communications to the employer, which just makes it even weirder that the employer would insist on being directly copied on internal YUFA communications.

What do you think?  Am I wrong about this?  Flip it around.  Could YUFA go on strike to win collective bargaining language that requires York to copy the union on any internal emails the employer sends around to its people about collective bargaining and grievance administration?  Maybe YUFA should counter in bargaining that it will agree to keep Article 8.02(a) provided that it is extended to include a reciprocal obligation on York to copy YUFA on all labour relations communications exchanged internally by employer representatives.

We will watch for updates over the coming days as we count down to a legal strike/lockout date on March 24.  Stay tuned.